Westine v. Bureau of Prisons

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 16, 1996
• Docket: 95-1362
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS Filed 12/16/96 FOR THE TENTH CIRCUIT

JOHN G. WESTINE, JR.,

Petitioner-Appellant,

v. Nos. 95-1362 & BUREAU OF PRISONS; W. A. 96-1019 PERRILL, Warden, FCI Englewood, (D.C. Nos. 95-M-1846 & Respondents-Appellees. 95-S-2445) (D. Colo.)

ORDER AND JUDGMENT *

Before BALDOCK and BRISCOE, Circuit Judges, and LUNGSTRUM, ** District Judge.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. ** Honorable John W. Lungstrum, District Judge, United States District Court for the District of Kansas, sitting by designation. After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeals. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cases are

therefore ordered submitted without oral argument.

Plaintiff John G. Westine, Jr. appeals from orders of the district court

dismissing his petitions for relief filed pursuant to 28 U.S.C. § 2241. We affirm.

Westine filed two consecutive § 2241 petitions. In both, he raised the same

issues regarding his placement in administrative detention. The district court

dismissed both petitions on the grounds Westine had failed to exhaust his

administrative remedies.

The Bureau of Prisons has established a grievance procedure for inmates to

follow by which they may seek formal review of issues relating to their

confinement. See 28 C.F.R. §§ 542.10-542.19. We have held it necessary that

inmates follow the grievance procedure prior to filing suit in federal court in

order to possibly resolve issues, reduce court intrusion into prison

administrations, and provide some fact-finding so that if the matter reaches the

court system, the court will have a starting place for understanding and resolving

the matter. See Brice v. Day, 604 F.2d 664, 666-67 (10th Cir. 1979), abrogated

on other grounds by McCarthy v. Madigan, 503 U.S. 140 (1992). This

requirement may be waived if the inmate can show that requiring exhaustion

-2- would prejudice his claim, the remedy is inadequate, or the administrative body is

biased. See McCarthy, 503 U.S. at 146-48.

No. 95-1362

Westine filed this petition five days after he had been placed in detention.

Clearly, he had not attempted to exhaust the Bureau of Prisons grievance

procedure before filing this petition. Westine made no showing as to why he

should be excused from following the established procedures. The district court

correctly dismissed this petition.

No. 96-1019

After the district court entered judgment in No. 95-1362, Westine filed

another petition for § 2241 relief. In this petition, Westine raised the same

grounds he raised in the prior petition; however, he asserted he had exhausted his

administrative remedies. The exhibits Westine attached to his petition showed he

had filed a request for administrative relief regarding the fact that his legal mail

was being opened by prison authorities, some of his legal mail was missing, and

he was being denied “legal phone calls” since he had been placed in detention.

The district court again dismissed the action because Westine had failed to

exhaust his administrative remedies regarding the issue raised in his petition. We

-3- agree that Westine again failed to exhaust his administrative remedies.

The judgments of the district court are AFFIRMED.

Entered for the Court

Mary Beck Briscoe Circuit Judge

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